Sunday, September 03, 2006

Witness for the Defense?

To date, Mike Nifong has resisted calls from his state’s largest newspaper, the Charlotte Observer, that he recuse himself from the lacrosse case and request a special prosecutor. Duke law professor James Coleman has recommended a similar approach. So have the Winston-Salem Journal and Rocky Mount Telegram.

The district attorney has repeatedly claimed that his sole interest is achieving justice for the accuser. If so, it’s hard to imagine why he hasn’t asked Attorney General Roy Cooper to appoint a special prosecutor. After all, even the New York Times’ Nifong apologia noted,

Increasingly, Mr. Nifong has become the focus of attacks on the case. Some of the defense lawyers have accused him of professional misconduct for, among other things, giving dozens of what they describe as inflammatory interviews early in the case and for instructing the police to employ the faulty photo lineup. The defense lawyers say, too, that the district attorney refused to meet when they tried to share evidence that supported their clients.

Since defense attorneys no longer could criticize him or his motives, Nifong’s recusal would force them to contest his supposedly overwhelming evidence. Indeed, if he actually had faith in his case, the district attorney himself would now be the primary obstacle to a conviction. His presence as a prosecutor allows defense attorneys to distract attention from the “facts” of the case. And his inexperience handling rape cases (I doubt that many sexual assault files crossed his desk during what the New Yorkertermed his traffic court “semi-retirement”) prevents a more qualified figure from handling the prosecution.

Returning to reality, it’s easy to understand why Nifong has so desperately resisted a special prosecutor. “Justice” for the accuser isn’t high on his agenda; it seems unlikely, in fact, that it’s on his agenda at all. Rather, allowing a special prosecutor–or any other representative of law enforcement, such as the Justice Department–access to his case records almost certainly would conclude with the new prosecutor referring Nifong’s actions to the state bar’s ethics committee. The subsequent termination of his law license couldn’t be far behind. And that’s merely a best-case scenario for Nifong. The worst-case outcome would find him crossing the aisle to serve as a defendant himself.

There’s a chance, however, that this case could receive a special prosecutor regardless of Nifong’s intentions. The state attorney general’s office includes one section, the special prosecutions division, which can handle prosecution of local cases. Contrary to the recommendations of the American Bar Association, in North Carolina no state official–only the district attorney himself–can involve a special prosecutor in a case. But one aspect of the special prosecutions division’s protocols seems to remove all discretion for a D.A. on the issue. According to Category I, section (e), a special prosecutor is called for “when the District Attorney or a member of his staff will be called as a witness to testify regarding contested facts touching upon the merits of a case.”

In a normal case, the odds of a district attorney falling under this provision would be close to zero. But this, of course, isn’t a normal case. At various points in the process, Nifong has served as de facto Police Department press secretary and the de facto lead investigator. And he has taken at least five positions that would appear to merit further examination on the witness stand.

Let me point out that the evidence that she would present with respect to that particular situation is that she was grabbed from behind. So that in essence, somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe, and it was in the course of that struggle that the fingernails—the artificial fingernails broke off.

Now as you can see from my arm, if I were wearing a shirt, a long-sleeved shirt or a Jacket of some sort, even if there were enough force used to press down, to break my skin through the clothing, there might not be any way that anything from my arm could get on to those fingernails. So again, whether or not there would be any evidence would depend on exactly the situation. Were the fingernails actually in contact with the skin or were they in contact with clothing?

Subsequent photos of players from the party (as well as the videotape of Seligmann from the ATM machine) show no signs that any players were wearing “a long-sleeved shirt or a Jacket of some sort.” More important, in her interview with the SANE nurse-in-training, the accuser didn’t claim to have been choked–much less “grabbed from behind” in such a way that she “had to struggle with in order to be able to breathe.”

Unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

2.) Condoms

In late March, Nifong twice theorized about the possibility of the attackers using condoms. In an interview with the Charlotte Observer, he mused, “I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

If you are being forced to have sex against your will, you may not necessarily notice whether or not somebody behind you is using a condom. This was not a consensual sex situation. This was a struggle, wherein she was struggling just to be able to breathe. So I'm not sure that she would really have much way of knowing whether a condom was being used.

As we now know, in her interview with the SANE nurse-in-training, the accuser said her attackers didn’t use condoms. Despite myriad, mutually contradictory stories, she has never veered from that assertion. And Nifong’s three theories to MSNBC about why the accuser wouldn’t know if a condom were used seem to contradict items in her own story. From where did the district attorney obtain this information?

Unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

3.) The April 4 Lineup

If North Carolina is to retain any procedures regulating eyewitness ID’s after this case, a judge will have to suppress this lineup. The idea of a district attorney ordering police officers to violate their own procedures in the case’s single most important item of evidence remains the most outrageous aspect of Nifong’s misconduct.

But the lineup transcript also involves an important evidentiary issue. In his March 29 interview with MSNBC, Nifong stated, "All of the people at the party were Duke lacrosse players with the possible exception of two fraternity people who were there at some point that evening with another member of the Duke lacrosse team."

Six days later, however, the district attorney ordered police to confine the lineup lacrosse players, since he was “under the impression that the players at the party were members of the Duke Lacrosse team.”

No evidence has come to light that, between March 29 and April 4, either the Durham police or Nifong did any investigating of the list of party attendees. So under what criteria did the district attorney exclude from the lineup the “two fraternity people” he believed attended the party? This decision certainly regards “contested facts touching upon the merits of a case” and should be subject to cross-examination.

4.) The SANE Nurse-in-training’s Medical Report

On March 29, Nifong asserted, “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

As defense attorneys have already noted, the report Nifong claimed to have read wasn’t even printed until March 30. Did he obtain access to another, earlier, report?

Unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

5.) Race and the “Crime”

On March 27 Nifong claimed that “racial epithets against the victim” played a role in the attack. Three days later, in a national TV appearance on CBS, he expanded on the point by arguing, “The racial slurs involved are relevant to show the mindset … involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible.”

All sides agree that a racially charged exchange occurred between the second dancer, Kim Roberts, and two or three players as the party was dispersing. Yet no evidence existed at the time Nifong made these assertions that the accuser ever was the target of “racial epithets,” or that “racial epithets” were ever used inside the house.

Meanwhile, in his March 31 appearance on the Abrams Report, Nifong was asked if anyone had admitted making the first 911 call to police (alleging racial comments at the house). The district attorney’s response? “To my knowledge, no one has done that yet.”

Yet nine days earlier, the second dancer, Kim Roberts, had admitted to police she made the call. Did Nifong have reason to doubt the veracity of Roberts’ claim; and, if so, why?

On both of these race-related issues, then, unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

In a June 15 interview with the N&O’s Joseph Neff, Duke law professor James Coleman characterized many of these comments by Nifong in the following way: “Either he knew what the facts were and misstated them, or he was making them up. Whether he acted knowing they were false, or if he was reckless, it doesn’t matter in the long run. This is the kind of stuff that causes the public to lose confidence in the justice system.”

At this stage, it seems undeniable that in late March and early April, Nifong made statements on a whole host of “contested facts touching upon the merits of a case.” Since he is an officer of the court, defense attorneys are within their rights to presume he wasn’t out-and-out lying in his remarks about the choke-hold; condoms; non-lacrosse players at the party; the medical report; and race. As in these five instances he was acting more as a Police Department spokesperson or a lead investigator than as a prosecutor, there would seem to be no way for the defense to explore these “contested facts” without summoning Nifong to the stand. And if they can succeed in doing so, then the district attorney has no choice but to recuse himself from the case.

What is additionally interesting about the two purported non-team members is the D.A.'s description of them as “two fraternity people.” That adjective hits all the right buttons with some people: jocks and frats. It has greater punch that "two non-team members" or "two guests" or "two other college students."

After he is cast out, Nifong will be, de facto, unemployable in the thinly-sliced legal specialty that has defined his adulthood. He's a disgrace, a proven liar, the antithesis of a minister of justice. DAs throughout the state and nation will refuse to have Nifong darken their doors. Easley, eyeing a U.S. Senate seat, is not, people, going to re-appoint his greatest political embarassment... After nearly thirty years honing his craft, Nifong will be left without a place to practice it. This will be the first post-loss reality to come to home to roost. Bar discipline, disbarment proceedings, federal indictment and civil trials (x3) will only follow, later.

The foregoing crystallizes the need for Nifong to be replaced by a special prosecutor immediately. Obviously, Nifong has a humongous conflict of interest. It is in his selfish interest to continue to posture this case as one carried forward by him reasonably, in good faith, evidence be damned. Else, he's being trained by Napolean Dynamite on how to properly wear the cardboard sailor's hat and always ask if they'd like fries with that.

“The fact that a victim provides the police with information of an alleged crime does not, without more, constitute probable cause. Rather, the officer has a duty to assess the reliability of the victim and, if circumstances call into doubt the victim’s veracity, to investigate the allegations and corroborate them…Defendants further argue that Plaintiff’s indictment by a grand jury precludes a claim for false arrest, as it creates a presumption of probable cause. While a grand jury indictment does create a presumption of probable cause…it is rebuttable ‘by evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the police or other police conduct undertaken in bad faith.’…”

Jovanovic v. City of New York, et al., opinion filed August 17, 2006, at 11-13 (SDNY)

You do an incredible job sorting out fact from fiction in this case. As a NC resident and duke grad there has been precious little critiquing of this hoax from my alma matter, very little from the press and none I'm aware of from our NC politicians, to my knowledge. Thank God for the bloggers!

Anonymous, in terms of the "Jovanovic v. City of New York" cite provided what's the relevance to this hoax since that decision was only in the southern district of NY (US)?

I'm certainly with you in spirit and I agree with much of your factual analysis. But of course what you suggest is beyond reality. A lot of wishful thinking has occurred among the defendants' supporters, resulting in unrealistic expectations, in my view.

A prosecutor wears different hats, and as long as we elect them one of those hats is being a politician pandering to the voters. We could have a system of appointed prosecutors, but removing the possibility of the electorate removing one raises a spectre of a worse evil should a corrupt and conniving DA take office.

Nifong's public pronouncements form no basis of making him a potential witness. The "officer of the court" duties concern truthfulness to the court, not truthfulness in public statements. A lot of what he said was just baseless speculation, particularly the choking and the condom comments. The characterization of the SANE report was false as was the denial of knowledge of Roberts' call to 911 about racial epithets. All of this I agree was unethical for a prosecutor, but hardly makes him a potential witness.

You come close on the photo array business, but unless Nifong contradicts what the cops say he said to do, there's nothing for him to testify to that can't be established through the cops.

The Nifong locomotive is still on the railroad tracks. A special prosecutor is too much to hope for. I think the next chance for derailing this railroad job is the suppression motions on the photo ID's. If that succeeds, the case would seem to collapse and be ripe for dismissal. The next chance would be for a Nifong loss at the election in November. Even then we would have to wait for a new person to be appointed and take charge before the case can be nolle prossed. After that the next best chance is the approach of a real trial date, which will force the accuser to save face and declare (tearfully) she asks the prosecution to stop because of the stress on her family.

I had hopes that the case would be dismissed in time for Seligman and Finnerty to go back to school and play this coming Spring. But trying to be realistic, I don't see it happening in time. They'll probably lose the second semester, too.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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